Image Rights: Fair Use And Online Images-By Ujong Okpa, Esq.

Ujong Okpa, Esq

BACKGROUND

Anything can be for commercial gain these days, anything, including images; and the internet has become that global market.

The internet, through websites and domain names, affords the space to access, possess and use images at little or no cost, with some of the images found on this space connected to established brands (personalities and businesses) who exercise intellectual property rights over them, particularly copyright and trademark. And while copyright remains the only form of intellectual property that grants automatic protection for works created in a fixed medium like images, trademark generally requires registration of the images for protection. The implication is that unauthorized production, reproduction and use of images (or pictures) obtained from the internet vide download, transfer or any other means may amount to copyright or trademark infringement, depending on the reason, manner, type and scope of use. This is the reason intellectual property exists in the first place – to exclusively protect the interest of the owner or author of the intellectual property from unauthorized use or imitation.

It turns out, intellectual property law simultaneously makes room for the public to use the works protected without infringement. This way, the reason, manner, type and scope of use of online images by persons other than the owner or author may present an exceptional circumstance or defence to copyright infringement. This is generally termed “fair use” or “fair dealing” and constitutes the focus of this work, with an eye on the relevant Nigerian laws.

WHAT CONSTITUTES IMAGE RIGHTS

An image right cannot be defined devoid of the root word “image”. So, while an image refers to the physical likeness or representation of a person, animal or thing photographed, painted, sculptured, or otherwise made visible, image rights is the control over an image by the personality whose image is portrayed or by the image’s creator.[1] Image rights concern the various rights an individual holds in their own persona (including their name, photo and likeness, signature, personal brand, slogans or logos etc).[2] It allows the proprietor to exploit any or all of the following without unauthorized, external use: voice, signature, likeness, appearance, silhouette, feature, face, verbal or facial expressions, gestures, mannerisms. The proprietor of image rights (or the author of the work) could be the company (the photograph agency or image creator) who exercise intellectual property rights over the image by virtue of the  royalty agreement signed with the personality, or the personality himself or herself who has personal rights over the use of the images. A photographer generally has a right over the pictures taken by him unless he is an independent photographer hired for a contract for service.

In the United States of America, image rights are referred to as Right of Publicity and are largely protected. Sections 50 and 51 of the New York’s Civil Rights Law are proof. However, like the U.K., there are no specific laws dealing with image rights for inhabitants of Nigeria although the Constitution provides an alternative in the form of the right to privacy and telegraphic communications under section 37. It is argued that one may sue for breach of the constitutional right to privacy if he can persuade the court to construe the constitutional right to privacy as a right not limited to the intrusion of one’s private life but extending to the appropriation of a person’s name or likeness for another’s commercial benefit.[3]

It is pointed out that although image rights are open access, the individual or personality must show the enjoyment of goodwill and fame to be entitled to them. This is a constraint which has made celebrities the main beneficiaries of image rights over time. Consequently, in Nigeria, individuals and brands have another shot at protecting their images online without resort to image rights simpliciter. The next discuss reveals.

WHETHER IMAGES ARE SUBJECT TO PROTECTION

Images may be protected from the fronts of copyright and trade mark. The Copyright Act[4] is the primary legislation on copyright in Nigeria. Without defining copyright, the Act states in Section 1(1) that literary works, musical works, artistic works, cinematograph works, sound recording and broadcasts shall be eligible for copyright[5] and artistic works is defined to include photographs.[6] This lays to rest any question of whether  images are protected under the Copyright Act. It is also included in the first Schedule to the Act that the protection of photographs will expire fifty years after the end of the year in which the picture (work) was first published.

Images are protected by copyright from the moment of creation and there is no requirement to use the “circle c”. However, the image must be original and in a fixed medium of expression already in existence or in a medium that will exist in future.[7] “Originality” within this context does not connote inventiveness or novelty; it simply denotes that the work was not copied or plagiarised.[8]

It is submitted on the affirmative that the Copyright Act extends to works and images on blogs and websites. Here are the reasons. Once expression is committed to a fixed medium, copyright protection is created, and the computer is a fixed medium. Also, analysing the phrase “publish” used in the Act, blogs and websites are platforms for the publication of works.

The protection of images and pictures through the Copyright Act is the exclusive right given to the image owner or author to, among other things, reproduce the image in any material form,

publish the image, include the image in any cinematograph film, make an adaptation of the work or do in relation to an adaptation of the image.[9] The general exception is where the permission of the author  is first sought and obtained or when it becomes public domain after fifty years of first publication or display. As earlier understood, the image owner is either the person who took the photograph (the endorsing company referred to as “author” in section 39(1) of the Act) or the personality in the picture. [10]

As regards images online, images on sites of stock photo agencies like Shutterstock, Adobe Stock, Stock Photo Secrets and Getty Images are sold and often retain watermarks when obtained any way other than by purchase (say by screenshot). Using these images other than paying for them or modifying them may amount to copyright infringement.[11]

To avoid any uncertainty with copyright protection of images, brands and authors may register their images under the Trade Marks Act as word marks. In this pursuit, it is the name of the personality behind the image that is registered, allowing the registrant to exercise exclusive right over the use of the image, unless the registrant’s consent is first sought and ratified.[12] The scope of trademark protection is the preclusion of others from the use of the trademark through adjudication,[13] as is with protection of copyright. Adjudication here includes right to damages, account for profit and injunction. Liability, on conviction, to a fine of not less than One Million Naira (N1,000,000) or imprisonment for a term of not less than 5 years or to both may also apply. This criminal liability, as provided for in the Cybersecurity and Information Protection Act, will either run severely or concurrently with the other civil liabilities.[14] But for the Cybersecurity Act to be applicable, the infringing act must be one where the image is used for online marketing and advertisement.

HOW FAIR USE COMES IN

Other than the rule of consent, permission and authorization (CPA), fair use presents another exception to the lawful use of the copyrighted or trademarked images of another. Known as fair dealing under the Nigerian law, fair use is a legal exception to the exclusive rights an owner has and exercises over his or her copyrighted work. The concept basically allows one to infringe on another’s copyright (images) and the author can do nothing about it.[15]

Speaking of fair use, section 107 of the Copyright Act of the United States entrenches:

“The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

In Nigeria, fair use (fair dealing) is first impressed in section 5 of the Copyright Act. Although first alluded to in the section, it is the Second Schedule to the Act that embodies fair dealing. Reproducing paragraph “a” of the schedule:

“The right conferred in respect of a work by section 5 of this Act does not include the right to control the doing of any of the acts mentioned in the said section 5 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast.”

Due to the imprecise definition and exceptions of “fair dealing” provided in the Act, much reliance is placed on the English position in determining whether a particular use is fair dealing by the Nigerian courts. More so, there is a dearth of Nigerian authorities on the issue of the scope and limits of the doctrine of fair dealing. Consequently, being a common law country, the doctrine as practiced by the English courts will be very instructive.[16]

However vague the scope of fair dealing under the Nigerian Copyright Act is, four uses would be regarded as coming under the concept in relation to the online or offline use of images. First, images gotten from an online platform or site for use in a research work will come under the exception or defence. Secondly, the private use of online images would produce the defence of fair dealing. Thirdly, using images for criticism or review will be fair dealing. Lastly, the use of images to report current events is fair dealing under the Act.

The limitation poised for authors and users is that the Act does not define the scope of these uses. When can an image be said to be privately used? What happens when the use of online images for research accrues commercial benefit? Obviously, the Act focuses solely on the type of use and pays a blind eye to the amount of use, the modifications carried out and the economic gains of the use. For “public” or “private” have no effect on the commercial/economic purpose of a picture.

The Act is also silent on works obtained from open access channels and platforms. What happens where a picture is downloaded from open access, popular domains like “pixabay” or “unsplash” and used for economic purposes? Does fair dealing even extend to situations where images used for economic purpose are screenshots, and not purchased, from stock photo agencies like Shutterstock, Adobe Stock, Stock Photo Secrets and Getty Images? These questions are not exhaustive.

In certain legal climes and jurisdictions, downloading and putting to use images on premium sites like Shutterstock without any form of adaptation or paying for the one-off licence will occasion implications like judicial remedies, discrediting and penalizing of the blog or website by Google penguin and the likes, specifically where the use is for economic benefit.

CLOSING

Fair dealing isn’t free use. It is an accepted form of use within certain legal confines. The concept is the most significant exception to copyright image infringement but the situation under the Nigerian law has not helped the status in any way. The impreciseness, vagueness and limited nature of the exception under the Act is a far cry for the second purpose of intellectual property law – to provide limited use if it benefits the public. By and by, significant modification of an image to create another is adaptation and should pass for fair dealing under the Nigerian law, unless the image is the picture of a personality.

If the law is anything to go by, as it is, Nigeria’s policy makers and legislators should find it incumbent to extend the limited scope of fair dealing and make the circumstances surrounding the concept more definite in conformity with international best practices. This will be helpful to both the authors of the work and public users.

FOOTNOTES

[1]. A Adetula, ‘Image Rights and IP in Nigeria’ (The Barcode, 2016)

http://barcode.stillwaterslaw.com/1.1/2015/12/21/image-rights-and-ip-in-nigeria/ accessed 10 January 2021.

[2] https://www.rocketlawyer.co.uk/article/image-rights.rl accessed 10 January 2021.

[3] No author, ‘Image Rights: Charting New Paths’ (Olaniwun Ajayi LP, 27 February, 2015) in D. Oturu, ‘Protection Of Image Rights (Part 1)’, (29 October 2019). https://www.mondaq.com/nigeria/intellectual-property/858520/protection-of-image-rights-part-1, accessed 10 January 2021

[4] Cap.C28 LFN 2004

[5] Meanwhile copyright is the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (such as a literary, musical, or artistic work). See definition at https://www.merriam-webster.com/dictionary/copyright  accessed 19 January 2021.

[6] Section 39(1) of the Act

[7] Ibid, section 1(2).

[8] Supra, Oturu

[9] Supra, section 5(1)(b).

[10] In 2017, for instance, Khloe Kardashian was sued for posting a photo of herself on Instagram by a U.K.-based photo agency, Xposure Photos. See https://www.hollywoodreporter.com/thr-esq/khloe-kardashian-sued-posting-a-photo-khloe-kardashian-instagram-997650 accessed 12 January 2021.

[11] Photographers, bloggers and website owners now embed metadata on their photos so they can track where their photos are used in a bid to give them a clue on any infringement.

[12] Section 5(2) of the Trade Marks Act, Cap.T13 LFN 2004.

[13] U. Okpa, ‘Protectable Trademarks in Nigeria and the Scope of their Protection’, 29 December 2020. https://www.linkedin.com/pulse/protectable-trademarks-nigeria-scope-protection-ujong-ujong-okpa accessed 19 January 2021.

[14] Section 21 of the Cybersecurity and Information Protection Act.

[15] S. Hawkins, ‘Copyright Fair Use and How it Works for Online Images’, Nov. 23. 2011. https://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/ accessed 19 January 2021.

[16] J. Bryant, ‘The Defence of Fair Dealing in Nigerian Copyright Law: Tradeoffs Between Owner and User’, 13 November 2018. https://www.mondaq.com/nigeria/copyright/754060/the-defence-of-fair-dealing-in-nigerian-copyright-law-tradeoffs-between-owner-and-user, accessed 19 January 2021.

THE AUTHOR

Ujong Okpa is a legal professional whose specialty are in the areas of intellectual property and technology law, as well as environmental and energy law. He is also a strong advocate of human right. Taking away research and writing from him is making him the hangman hanging himself. Suicide is a crime against one’s generation anyways.

Here’s his contact address: ubokpa@gmail.com